‘Big Pimpin’’ and Moral Rights: A Look At a Ninth Circuit Copyright Appeal

By Michael Garrigan

Shawn Carter, professionally known as rapper and entrepreneur Jay-Z, released the hip-hop track “Big Pimpin’” in 2000. Like many songs in the hip-hop genre, “Big Pimpin’” contains a fair amount of profanity and suggestion. “Big Pimpin’” peaked at #18 on the “Billboard Hot 100” chart. The song also ranks at #467 on Rolling Stone’s “500 Greatest Songs of All Time.” Producer, Timothy Mosley, professionally known as Timbaland, provided an eclectic sound bed over which Jay-Z could compose—an infectious, exotic flute melody consumed by a Southern hip-hop beat. The flute melody would eventually be the source of an eleven (11)-year legal dispute.

Timbaland and Jay-Z took the flute melody heard in the background of “Big Pimpin’” from “Khosara Khosara” (“Khosara”), an Egyptian pop song from the 1950s.[1] In 1993, Osama Ahmed Fahmy, the nephew of Egyptian songwriter, Baligh Hamdy, inherited the rights to Khosara.[2] Two years later, Fahmy granted licensing and distribution rights to EMI Music Arabia (“EMI”).[3] While Timbaland and Jay-Z first assumed that Khosara was in the public domain, Timbaland paid EMI $100,000.00 in 2000 for the right to use the Khosara melody.[4] In 2007, however, Fahmy sued Jay-Z for copyright infringement, asserting a “moral right” to object to offensive uses of a copyrighted work.[5] After a series of appeals and remands, on May 31, 2018, the U.S. Court of Appeals for the Ninth Circuit held in Fahmy v. Jay-Z that a foreign copyright owner does not have standing to sue for infringement in a United States court solely based on a “moral right.”[6]

The Ninth Circuit made the correct decision regarding “moral rights.” From the French term droit moral, “moral rights” are the entitlements that an author retains in his work as a manifestation of his personality. These “moral” or “spiritual rights” are separate and distinct from “economic rights.”[7] While § 106A(a) of the Copyright Act recognizes a narrow variety of “moral rights” for works of visual art, no provision of the Copyright Act recognizes “a moral right to prevent distortions or mutilations of copyrighted music.”[8]

“Moral rights” is an umbrella term for (at least) four (4) non-economic rights: Attribution, Integrity, Disclosure, and Withdrawal. “Attribution” is an author’s right to declare authorship. “Integrity” is an author’s right to prevent “distortions or mutilations” of copyrighted works. “Disclosure” is an author’s right to decide when and how a work will be debuted to the public. “Withdrawal” is an author’s right to retract economic rights already licensed to third parties.[9] The Berne Convention, an international treaty, recognizes “moral rights” in § 6bis(1):

Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

Because “disclosure” and “withdrawal” are so rarely at issue, if recognized at all, the “moral rights” doctrine in Berne is mostly concerned with “attribution” and “integrity.”

Advocates for supporting “moral rights” in copyright law argue that “authors as a group are entitled to a basic right of dignity that requires respect for them as creators, for their work, and for the creative process.”[10] While many countries recognize “moral rights,” France offers the most protection for them, offering even, in some circumstances, the controversial right of “withdrawal.” A right to “integrity,” if practiced broadly and consistently, would theoretically yield a “respect for creative excellence” that would seem to elevate creativity and provide non-economic incentives to create.[11]

Proponents for excluding “moral rights” from copyright law argue that “integrity” is an inherently fuzzy concept. During the Berne Convention debates, one scholar recalls that someone recommended changing the term “moral rights” to “spiritual interest,” which seemed difficult to define.[12] Other critics of “moral rights” note the concept’s general incompatibility with U.S. property laws, which value “motion” and “risk” rather than “security” and “rest.” Another objection to “moral rights” argues that enforcing “integrity,” and especially “withdrawal,” would be highly impractical. Imagine the public reaction from attempting to delete “Big Pimpin’” from commercial streaming servers. The song would immediately reappear on social media sites or YouTube. Every subsequent “take down” notice, aiming to enforce “integrity” and “withdrawal,” would be answered by more and more postings of the song, resembling a never ending, pointless Whack-A-Mole game.

The Ninth Circuit found that Fahmy, owner of “Khosara,” lacked standing to sue Jay-Z for copyright infringement based on a “moral right.” Fahmy argued that he had standing to sue because, under Egyptian law, “moral rights” are inalienable and such rights are secured by the Berne Convention. First, the Ninth Circuit observed that the Berne Convention does protect “moral rights,” but only the “same protection” afforded in the country where the infringement occurred. This “principle of national treatment” does not require the U.S. “to grant foreign copyright holders rights which are not granted to its domestic holders.”[13] Because the U.S. does not recognize “moral rights” in non-visual art, it is not required to recognize Fahmy’s claim to “moral rights.”

Second, the Ninth Circuit recognized that even if the Court were to recognize Fahmy’s theory, he would only be able to obtain an injunction in Egypt. And even that would require him to pay Jay-Z “for limiting what would otherwise be an unencumbered economic right.” The court noted that Jay-Z had already paid $100,000.00 for the right to use “Khosara.”

Third, the Ninth Circuit recognized that contractual royalty rights are a matter of state law and not federal law. Fahmy argued that he had standing to sue because he was the beneficial owner of the Khosara copyright.[14] A beneficial owner is the person who is entitled to benefit from the copyright even though legal title is vested in someone else.[15]  Normally, this right, as Fahmy alleged, confers standing to sue for copyright infringement. Here, the Ninth Circuit saw beneficial ownership as a contract issue governed by state law and thus “not a concern of federal law at all.[16]

The U.S. refused to join the Berne Convention for over a hundred (100) years, mainly over the objection to recognizing “moral rights.”[17] With the “principle of national treatment” in play, the U.S. continues to get a pass at recognizing “moral rights.” The Ninth Circuit’s decision in Fahmy v. Jay-Z affirms that the U.S. will not recognize “moral rights” in copyright law any time soon.

The Berne Convention, however, requires a copyright term of “life of the author plus 50 years,”[18] which challenges the U.S. paradigm of “life of the author plus 70 years.”[19] As the U.S. contemplates increasing the author’s ownership term (and likely will decide to do so), future copyright suits may address whether the U.S. view of the copyright term is equitable. But for now, and as the Ninth Circuit affirms, federal law holds steady in rejecting “moral rights” in copyright.

[1] Associated Press, Jay Z’s Big Pimpin Dispute Bound to Raise Cost of Making Hip Hop Music, Billboard (Oct. 15, 2015), https://www.billboard.com/articles/columns/the-juice/6731019/jay-z-big-pimpin.

[2] Fahmy v. Jay-Z, 891 F.3d 823, 826 (9th Cir. 2018)

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] June M. Besek et al., Session 1: Overview of Moral Rights, 8 Geo. Mason J. Int’l Com. L. 6, 7 (2016).

[8] Jay-Z, 891 F.3d at 831.

[9] Overview of Moral Rights, supra note 4 at 8–9.

[10] Ilhyung Lee, Toward an American Moral Rights in Copyright, 58 Wash. Lee L. Rev. 795, 838 (2001).

[11] Brian A. Lee, Making Sense of “Moral Rights” in Intellectual Property, 84 Temp. L. Rev. 71, 102 (2011).

[12] Overview of Moral Rights, supra note 4 at 16.

[13] Jay-Z, 891 F.3d at 831.

[14] Id. at 826,

[15] See OWNER, Black’s Law Dictionary (10th ed. 2014)

[16] Fahmy v. Jay-Z, 891 F.3d at 834 (quoting Yount v. Acuff Rose-Opryland, 103 F.3d 830, 834-35 (9th Cir. 1996)

[17] Samuel Jacobs, The Effect of the 1886 Berne Convention on the U.S. Copyright System’s Treatment of Moral Rights and Copyright Term, and Where That Leaves Us Today, 23 Mich. Telecomm. & Tech. L. Rev. 169, 169 (2016).

[18] Berne Convention for the Protection of Literary and Artistic Works § 7(1) (1979).

[19] 17 U.S.C. 302(a)